In gay marriage cases, court must balance strong traditions

WASHINGTON — The Supreme Court heard two powerful arguments last week about marriage for gay and lesbian couples, and the path the justices choose could determine not only whether gay marriage will become the law nationwide, but how soon.

One argument spoke to the principle of equal rights. Denying federal benefits to legally married gay couples “cannot be reconciled with our fundamental commitment to equal treatment under law,” the Obama administration’s top courtroom lawyer told the justices, as he urged the court to strike down the Defense of Marriage Act.

The other argument spoke to the traditions of states’ rights and letting people, rather than the courts, decide the great social issues of the day. Debate over same-sex marriage is “roiling throughout this country,” said a lawyer defending the California ballot measure that barred gays from marrying. This process of “democratic debate” should continue, he said, rather than end with a sweeping court ruling that decides the law for the entire nation.

PHOTOS: Court considers same-sex marriage

How the court reconciles those two traditions could shape the future of the “marriage equality” debate.

If the justices were to strike down the marriage act in June, when they announce a decision, and declare that married gay couples deserve equal rights, it would set a ringing legal precedent that would almost surely lead to same-sex marriage in much of the nation. If it is a question of equal rights, how could states refuse to permit committed gay couples from marrying?

However, if the court were to decide the case by stressing that states decide who is married, the ruling would bolster those who favor a go-slow approach. If marriage is indeed a matter for the states, then conservative states can argue they are entitled to preserve laws limiting marriage to a man and a woman.

The arguments on Wednesday revealed the dilemma. Justice Anthony M. Kennedy, who probably holds the deciding vote, repeatedly said he was troubled by the federal law because it interferes with the “traditional authority of the states to regulate marriage.”

Nine states, concentrated in the Northeast, now allow gays and lesbians to marry, but the federal government refuses to recognize them as married. If the Supreme Court were to strike down this provision on the grounds that the states’ decision on marriage should prevail, it would be a victory for 130,000 legally married gay couples. It could also prove an obstacle for gay rights lawyers who say the state laws forbidding gay marriage are unconstitutional.

That’s why U.S. Solicitor Gen. Donald Verrilli Jr. and the liberal wing of the court insisted the issue was one of equal rights, not “federalism.”

The tenor of the two-day argument suggested that Kennedy and the most liberal justices wanted to move cautiously in favor of same-sex marriage. They seemed determined to put off for now a constitutional decision on whether gays have the right to marry across the nation.

“That would not be a surprise. It would be consistent with the court’s incremental approach to recognizing civil rights,” said Columbia University law professor Suzanne Goldberg, who watched the two days of arguments.

The court’s most famous civil rights ruling, the Brown vs. Board of Education decision of 1954, was a sweeping declaration that racial segregation is unconstitutional. But less known are the decisions that came before and after.

FULL COVERAGE: Same-sex marriage

The court had handed down rulings from 1938 to 1950 that gave black students the right to enroll in previously all-white Southern universities. Those precedents paved the way for the Brown decision. Then, after insisting on desegregation of the schools, the justices waited until 1967 to strike down the remaining state laws that barred interracial marriages in the aptly named case of Loving vs. Virginia.

Gay rights advocates do not expect it will be decades before same-sex marriage is the law throughout the nation. And some had high hopes the court would declare a constitutional right to marry this year.

“There was some disappointment that the court was not further along,” Kate Kendell, a lawyer for the National Center for Lesbian Rights, said after the argument. But she also heard much that was encouraging. “Not one justice made statements in any way vilifying of LGBT people,” she said.

She took special note of a comment from Justice Samuel A. Alito Jr., a conservative who said he favored a cautious approach. In questioning the lawyers, he asked about a same-sex couple who are “just as loving and committed” as a heterosexual couple. Despite a disagreement on the law, Alito “talked about us in very human terms imbued with dignity,” Kendell said.

Last year’s struggle over the healthcare law showed the difficulty of reading too much into the oral argument. In March 2012, the justices debated whether the law’s requirement that everyone obtain health insurance could be upheld as regulation of interstate commerce. Most of the conservatives sounded skeptical. But by June, Chief Justice John G. Roberts had decided the requirement could be upheld and enforced as a tax penalty. The four liberal justices agreed.

In Wednesday’s argument, five justices sounded ready to strike down the Defense of Marriage Act. They have until June to agree on a majority opinion.

Once they have decided that issue, the justices could turn their attention to the more tricky question of what to do with California’s Proposition 8, the voter-approved ban on same-sex marriage. A federal judge in San Francisco and the 9th Circuit Court of Appeals had ruled this state measure unconstitutional.

The oral argument on Tuesday made clear it was the court’s four most conservative justices who had voted to hear the Proposition 8 case. That decision is made behind closed doors, and the votes are not disclosed. But Kennedy and several of the liberal justices said it was a mistake for the court to have agreed to hear the appeal.

That suggested they would seek to dispose of the Proposition 8 case without ruling directly on whether gays have a constitutional right to marry. They could say the sponsors of the ballot measure do not have legal standing to appeal to the high court. They could dismiss the appeal as “improvidently granted.” Or they could hold the case until late June and send it back to California in light of the ruling in the Defense of Marriage case. All three options would lead to the restoring of gay marriage in California, but without a legal precedent that would affect the other states. It’s also possible but unlikely that Kennedy could join with the conservatives to uphold Proposition 8 on states’ rights grounds.

“Allow the democratic process to continue,” Paul D. Clement, the former solicitor general, told the justices in his closing comments. He was defending the marriage act on behalf of the House Republicans, and it appeared a five-vote majority would vote against him. But even if they do, the fight over gay marriage will likely continue.

david.savage@latimes.com

Times staff writer Maura Dolan contributed to this report.